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San Francisco 6, Us 4, Sarah Jones 3, Antonini 3, Moore 3, Wu 2, Borden 2, Sugaya 2, Hillis 1, Mr. Guy 1, Ann Marie Rodgers 1, Wiener 1, America 1, The City 1, The Board 1, Cadex Appeals 1, Fong 1, Dick Murphy 1, Tehama 1, Lafayette 1,
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  SFGTV    [untitled]  

    December 2, 2012
    3:00 - 3:30am PST  

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so, i think this is a wonderful project and there will probably be in other commissioners with some comments, but i'm happy to move approval for the 309 compliance, which i believe is what's before us. >> is that a motion? >> that is a motion. >> i'll second. >> commissioner sugaya. >> well, never mind. >> commissioner moore. >> i think it's an exceptional building. it shows that an architect really understands residential expectations for the new emerging district around the transit center. early on, it's quite a few years ago, we took on [speaker not understood] on residential expression. i think this building captures the nuances and the subtlies of what can be done. so, i'm really happy, whatever you want to comment on this. it is an incredibly wise choice by the developer to create a comprehensive open space design and hire the redevelopment
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landscape architect so it's not just an open space, but part of a network. i think it makes this project exceptional given the open spaces which are all residual little segmentments are fragmented together unless you have somebody who designed it with one stroke. we have that great opportunity and i thought the presentation was exceptional because it spoke about the different experiences, the different conditions under which these spaces all address different needs and all respond to settings of light, shadow, proximity, or even under the freeway. and i think that it was very, very strong feature of this particular design. i am not as much concerned about the exceptions which will not be part of the commission's decision, but i do think that tower separation might not be an issue here partially because we don't have the likelihood of
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adorning towers or the freeways fall apart in the future, which is a nice idea, but it's unlikely to happen in our lifetime. so, i am strongly supportive of the project. >> commissioner borden. >> yeah, i would just -- want to agree with everything commissioner moore said. she pretty much took my comments out of my mouth. i just wanted to add for the benefit of the public that this project required to have on-site affordability so there would be 49 affordable units. this is also a project that is part of the transit center development plan so the fees from this project actually fund all of the different improvements that we want in that region related to creating the transit center district and the open space, other affordable housing, et cetera. so, it's not a singular project, being considered as part of a whole. i just wanted the benefit of the audience you to know that. there was an e-i-r done for this entire area to look at the cumulative impacts of these individual projects that we're approving. so, it's not as if this project
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wasn't considered as part of a whole. it was part of a larger plan to densify this part of the city. more parking than many people might like. it is compliant and a reduction of what we have had in our code for parking. >> commissioner wu. >> thanks. i'm also supportive. i wanted to clarify with staff what we needed to put in the motion. you said [speaker not understood]. >> yes, thank you very much, commissioners. -- commissioner. there were two conditions included in the draft motion that should not have been. the reference is to open space required under section 138, which is, you know, shorthand what you would think of as the publicly accessible private open space that is associated with an office project. that is not applicable here. the only technically the only requirement here that is being met in part by the plaza is for a 20 foot wide connection
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between tehama and oscar park. it just happens that 25-foot wide pathway if you will happens to be occurring in the context of a larger plaza being offered by the project sponsor. technically that area is not required open space. >> okay, thank you. >> thank you. >> commissioner antonini. >> yeah, also, mr. guy, i think we have an errata sheet also. there was a mention of a shadow that does not exist with this project. has that already been incorporated in here? >> there is no errata sheet necessarily and there is nothing in the motion about that. it was just something in the executive summary that was boilerplate [speaker not understood]. that was a reference to shadows being cast. there are no shadows being cast in section 295 parks of the project. >> right, that's not in the motion. we don't need to correct something -- [multiple voices] >> thank you. >> commissioners, there is a motion and a second before you
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to approve with conditions as amended by staff. commissioner antonini? >> aye. >> and read into the record. commissioner antonini? >> aye. >> commissioner borden in >> aye. >> commissioner hillis? >> aye. >> commissioner moore? >> aye. >> commissioner sugaya? >> aye >> commissioner wu? >> aye. >> and commission president fong in >> congratulations aye. >> so moved, commissioners, that motion passes unanimously. zoning administrator? >> on the variance public hearing being closed, [speaker not understood] the size and phone figure raytion of the lot as justification for the variance. >> okay, next item. >> commissioners, at this time you'll be moving to your 3 o'clock calendar. item 21, for case no. 2012.1329u, the commission will consider a proposed ordinance amending the san francisco administrative code chapter 31 to reflect revisions in the california environmental quality act and to update and clarify certain procedures provided for in chapter 31.
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>> good afternoon, commissioners. ann marie rodgers. you heard the commission secretary call this item. this is a significant ordinance. we've heard a lot from the public and from you already. in response we've developed an additional me have owe that i'd like to hand out to you today, responds to some of your requests and some questions from the public. and i also have a packet which is community letters that we've received to date on this item. so, on in item, supervisor wiener would like to address you. i got a text from him that he is only available until 4 o'clock today, and i don't see him in the room right now. so, i'm going to begin my presentation. and if he walks in, let me know and i'll yield the floor to the supervisor. during the staff presentation i'd like to start with giving you contextual overview of the
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big moves of the ordinance. and then after my presentation senior environmental planner sarah jones will walk you through that new memo that the commission secretary is handing out. and then our chief environmental review officer bill lyka will conclude [inaudible]. the supervisor isn't here, and we'll let honorable supervisor wiener take the floor. * >> good afternoon, commissioners. today before you is an important legislation reforming our c-e-q-a appeal process in san francisco. and in fact, implementing a process where we really don't have one legislatively. this legislation has no impact whatsoever on anyone's substantive rights under
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c-e-q-a. in fact, we can't do that under state law as much as sometimes we'd like to amend state law, we can't. this provides for an improved more predictable and more timely process without affecting anyone's substantive c-e-q-a rights. commissioners, today i'm sure you would hear quite a bit of hyper boll i can rhetoric about how this legislation somehow undermines or guts * c-e-q-a and how the legislation will cause the sky to collapse into the earth. which is, of course, untrue. you will also hear hyperbole about how this legislation is some sort of nefarious developer scheme, which is also untrue, and ignores the fact that c-e-q-a appeals occur commonly for anything ranging from bike lanes to affordable housing projects to park projects, library projects,
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small family residential projects, and other projects that are anything but a developer scheme. indeed, larger developers have the resources and the savvy to be able to predict and to make their way through expensive and lengthy c-e-q-a processes, whereas an affordable housing provider, a family trying to put on a bedroom for an additional child, who are cash strapped, the transit agency may not have that same luxury. c-e-q-a, of course, exists to ensure proper analysis of environmental impacts. c-e-q-a does not exist as a tool to delay projects. however, san francisco's current procedures, unfortunately, can and sometimes are used in that way. this legislation helps to ensure c-e-q-a is used for its intended goal, to make sure that we have adequate environmental review of projects.
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this is part of a larger discussion that we're having in san francisco about an improved process for land use appeals. we make it very easy in san francisco for one person to delay a project for a significant amount of time. outside of c-e-q-a, of course, we've had recent examples of one persona peeling park permit at lafayette park, also at glenn canyon, delaying these important projects for months. we saw what happened with the north beach library. again, the intent of this legislation is not to reduce the public's ability to legitimately challenge a c-e-q-a document. this is an important part of the process, this kind of appeal, and it must be preserved. this legislation simply provides that if you're going to challenge a c-e-q-a determination, any member of the public may do so but must do so when the project's authorization is first considered, not at the 11th
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hour after you've perhaps lost all of your other challenges to the project. and under this legislation, public noticing will be enhanced so the public will be made better aware that an appealable determination has been made. planning staff will provide you with a detailed overview of the legislation, but i just want to note a few key changes. the first and possibly most significant change is changing the timing of an appeal of a categorical exemption. right now under our rules you can wait until the very last entitlement, discretionary entitlement is granted. and then that triggers your time to appeal. so, if you have a project that has three or four or five different entitlements and the last one might be a minor one that happens nine months down the road, you can wait until that last entitlement and then appeal. this legislation would require
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the appeal to occur within a time period after the first discretionary entitlement is granted. again, this does not in any way take away someone's right to challenge the c-e-q-a document. what it does is say that if you're going to appeal, if you have a concern about the c-e-q-a determination appeal, don't wait. another aspect of the legislation is a way of ensuring more predictability about situations where a project requires legislative action by the board of supervisors whether it's a zoning change or special use district. and where you also have, of course, c-e-q-a determination. right now when we have zoning that comes to the board for a project, there can be a separate c-e-q-a appeal fired. but that appeal can be filed late, it will disrupt the
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board's process. i'll give you an example of that. when the booker t. washington affordable youth housing project came to the board, we had to approve a special use district for that project. at the last minute, i think the day before or the day of our land use hearing, a c-e-q-a appeal was filed. we were required to take the entire matter off calendar and it delayed our consideration by two months. this legislation would provide that if the board is required to legislate for a project to happen, the board of supervisors becomes the c-e-q-a decision maker and the c-e-q-a item automatically comes to the board and is agendized along with the underlying zoning change or whatever the legislative change is and the board considers them, the two items together, and then the full board takes action. not deprive anyone the ability to comment [speaker not understood] c-e-q-a.
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in fact, it came to an automatic appeal. another change is that currently when a c-e-q-a appeal is filed, no action can be taken by anybody, by the board, by any commission. and that means there are plenty of times where actions need to be taken but don't have any physical impact or irreversible impact, but everything is frozen. this will provide when c-e-q-a appeal is filed, actions can continue to occur. for example, the hpc can continue to consider a landmarking or similar kinds of process, but no physical change can be made to the property. and, of course, the c-e-q-a determination is overturned, those decisions will be invalidated, but nothing irreversible will have happened. there are also improvements to noticing in the legislation and there are also changes around the board's rules. for example, requiring that there will always be a court
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reporter when the board holds c-e-q-a hearing. now it's optional. it's inconsistent. it gives the board more flexibility to adopt our own procedural rules around c-e-q-a. and then finally, the environmental review officer of the planning department will be able to make determinations around what is a historic resource that would require that noticing occur. and that will be a topic of discussion today as well. now, i know that this is complicated legislation and it's an important subject, but everyone's view on the matter is. and, so, we have been receiving significant amount of feedback. we have had various meetings so far with architectural heritage, with [speaker not understood], with sierra club and we'll continue to have those meetings and receive feedback. * what, not but at the last meeting i
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introduced substitute legislation that incorporated a number of the technical changes suggested by a number of the folks commenting on the legislation. we'll continue to have a very open and collaborative process around this to meet with people who want to meet and to receive feedback. and i look forward to the commission's feedback today. this is a process where we want to get people adam smallman perspective and produce the best product possible. * people's so, with that, finally, i wanted to address a few of the concerns that have been raised and i'm sure will be raised today and to briefly address them. one is that there's a claim that the legislation removes the public's ability to appeal. again, that is completely untrue. there has been a claim this legislation will have dramatic impacts on big megaprojects, whether it's america's cup or
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park more said kind of project. that is also untrue because this doesn't really impact how one appeals an e-i-r. that will basically remain exactly the way it is now. this legislation primarily impacts cadex appeals, and to a lesser extent negative declaration appeals. there's been a concern expressed about fair argument versus substantial evidence and the use of that language. this language, the language that we've used, is taken exactly from the state's c-e-q-a statute itself, and there's no intent in this legislation to change the standard of appeal. and then there was a concern expressed that the public would be forced to file a c-e-q-a appeal before a project proposed is fully articulated by having to file your appeal shortly after the first entitlement. but if a project changes and if its scope no longer falls
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within the bounds of the original c-e-q-a determination, of course, there would have to be a new c-e-q-a determination triggering new appeal rights. and then finally there's been a concern that the legislation would amend the definition of historic resource. that would require notice. the legislation does not make any changes to that standard. we've made some clarifying amendments to that effect. we'll continue to work with historic preservation community to address any concerns in that respect. so, commissioners, i would be honored to have your support and i look forward to your feedback. >> thank you. >> all right. that was a very thorough review by the supervisor. so, hopefully i think it's not repetitive, though.
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i'm going to talk a little bit more about the categories of things to help you understand it. first of all, there are changes here are really twofold. one is to require enhanced noticing forsee qua and, two, to ensure the robust c-e-q-a review happens and that the rights are maintained, but is within legislative time frames that everybody understands from the beginning. some of the provisions of this ordinance apply globally regardless of the type of environmental review and if the board is acting as decider. two, ensuring c-e-q-a appeals are still resolved by the board of supervisors, and three, codifying some existing procedures and requirements. so, let's look at these three global changes first. they apply to all types of environmental appeals. first is when the board is the decider. so, when the project comes to the board of supervisors
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anyway, such as there is an ordinance, maybe rezoning they need to approve. in these cases the c-e-q-a can be raised at the hearing that would be happening before the board anyway. so, it would be a single consolidated hearing. no appeal would even need to be filed. the board's hearing would address the c-e-q-a issues and the approval that was before the board. this would replace the separate c-e-q-a appeal process, but it would certify the board of supervisors to act affirmatively and make a c-e-q-a determination in order to approve the project. two, all matters would still be resolved by the board of supervisors. so, when the board is not required to approve the project, a separate c-e-q-a appeals process would be a potential avenue. appeals would need to occur following what would be called the first discretionary approval of a project. and there's been some questions about what this first approval would be. so, basically there are two types of first discretionary approvals. one where there is a hearing
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and one where there is not. for projects seeking entitlement in relying on a c-e-q-a exemption, the ordinance would designate the first approval as the first septment. there is itself appealable such as building permit. undercurrent conditions an appeal can occur at every discretionary action, even a minor permit such as a street tree permit that occurs way after the original building permit. and way after the original c-e-q-a review. under the proposal c-e-q-a notification would be added to the public notice for this first discretionary hearing. this notice would for the first time tell parties there is going to be a hearing and you have an opportunity to come to the hearing and you have an opportunity to file a c-e-q-a appeal. here's how you do it. now, if the action itself does not require notification and there is no public hearing, such as some of the city projects, then a notification on the c-e-q-a action and appeal time frame could still
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be posted by the approving department on our web page. if this posting occurs, then appeals would have to be filed within 20 days of the posting. if there was some sort of error where the posting didn't occur, we would go back to the longer 30-day period. the third kind of global change, codifying the existing procedures. there is concern about some things like i guess misunderstanding because it's not codified, but these are currently existing procedures people have been concerned about. one is the provision that would require a persona peeling an e-i-r to have already commented on the draft e-i-r and this is already codified. similarly, a provision that only the revised portions of an e-i-r could be reconsidered if a second appeal filed. this, too, is already codified and [speaker not understood]. lastly, there are some procedural rules such as the requirements for how you need to give things to the clerk of the board if you're appealing and when and what. these are all existing clerk of
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the board procedures. and they would be codified into law so we could look one place and understand the whole process. so, those are the three overall global changes. now let's look at some of the certain specific changes for the e-i-rs,v the negative declarations and exemption, the three types of c-e-q-a documents. first you heard the supervisor say they are already largely codified in chapter 31. so, beyond those general global changes there is not going to be a lot changing there. there is just one additional change and it is that the requirements for parcel level noticing where you need to notify everyone in the plan area and adjacent properties would be eliminated for those city planning processes that have large areas over five acres or greater. and this, again, is our current practice, but it would be codified. so, that's the big change for
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e-i-r. for neglect dick murphy decks, the position for appealing these would be unchanged except for three changes. first a negative declaration could not be appealed through the board unless it is first appealed here to this body. currently that is not the case. this change aims to have c-e-q-a issues addressed at the draft stage as is envisioned by the state c-e-q-a law. second, i described the mailing for these large city-run five acre and larger projects. that same would apply if they were covered by a negative declaration. there would be no need to do a mail notice to all those parties in the [speaker not understood]. third, this idea of a consistent 20-day deadline for filing appeals would also be established for negative declarations. that's the negative declarations. now let's look at exemptions. the ordinance does increase noticing for exemptions. i think it's interesting to note that state c-e-q-a law
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does not require noticing for exemptions. however, in san francisco, the approval of many currently exempt projects are noticed. this proposal would augment our existing noticing procedures by requiring the notice for exemptions. and as i explained earlier, the notes would explain that you have the right to appeal a hearing from the project. it would provide postings of approval actions and inform the public on exactly how and when to file an appeal. the process is now in place is less clear to the public as it relies on many things. we have to look at board of the clerk procedures. there is a city attorney opinion letter. and every individual determination for an appeal if appropriate, is it timely, has to be reviewed by the city attorney for review by determination. important to the hpc in particular, the proposed procedures would change nothing
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about how historic resources are evaluated under see qualitiv so, there is some confusion as you heard about that. there would be -- the only change relative to historic resources would be a small change to the special noticing that happens to those who are on our preservation mailing list. and this notice for historic resources was amended in the recent version just last week so it would address the concern and provide notice for any city adopted service. so, that's kind of the big overview. now our senior environmental planner sarah jones is going to go through the memo that we handed out today. and there copies on the table for the public. if anyone needs an extra one, they can see us. >> could i ask a quick question to staff? there's references i'm reading in here, and you just mentioned there had been amendments made to the legislation that we have had before us, but we have not received. is that correct? >> that is correct. i would go run copies right
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now. i'm sorry for that. >> that's all right. we don't need to do that. >> there's one more clarification on your presentation. >> i just wanted -- i'm not sure if i understood this correctly. two things. you said that if one wanted to speak at a later e-i-r hearing, they had to have addressed the d-e-i-r hearing to speak at the later hearing? >> at the appeal hearing, that's correct. >> all right. that was one thing i wasn't clear about. and the other -- on negative declarations, it says there's no appeal to the board unless it first is appealed to the planning commission. i thought it was the other way around. it would be they appeal just to the board. but it has to first go to the planning commission. they can't directly much to the board for appeal? >> yes, if you're an appellant,
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you can appeal to the planning commission and then a again appeal later to the board. or some people choose to skip that and just appeal directly to the board of supervisors. it's more consistent with c-e-q-a to have the earlier appeal before this body, which is the acting body for the negative declarations, because then it's still in the draft stage and it's addressed earlier. c-e-q-a prefers to address issues earlier. >> i agree, because everything else in the c-e-q-a process comes first to the planning commission. and then it's appealed to the board in some cases. so, okay, thank you. >> thank you. >> good afternoon, president fong and members of the commission. my name is sarah jones,. i'm from the environmental planning division of the planning department. what i am doing today is giving a brief overview of the materials that you received this afternoon. those include a cover memo, some case studies on projects
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that were appealed. there were also appeals filed since 2010, a list of time frames -- a list of time frames for appeals as well as the department's responses to the comments that we've received thus far on the legislation. * results these materials were prepared in response to requests for information from commissioners. so, i'm mainly going to focus on the cover memo. what we did in that cover memo was broke down the proportion of time that the appeal process takes relative to other portions of the environmental review process for each major type of environmental document. this turned out, actually, to be a very helpful exercise for us because it really highlighted that the most problematic aspect of the current situation is the lack of predictability and clarity with regard to negative declaration and categorical exemption appeals. so, first

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